Hall v. Missouri Pac. Ry. Co.

CourtUnited States State Supreme Court of Missouri
Citation118 S.W. 56,219 Mo. 553
PartiesHALL v. MISSOURI PAC. RY. CO.
Decision Date31 March 1909

Appeal from Circuit Court, Johnson County; W. L. Jarrott, Judge.

Action by Errett Hall, by next friend, against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Martin L. Clardy and R. T. Railey, for appellant. O. L. Houts, Walter L. Lampkin, and Charles E. Morrow, for respondent.

GRAVES, J.

Plaintiff, a boy of 14 years at date of accident, sues by his next friend to recover from defendant damages in the sum of $25,000 for personal injuries alleged to have been received through the negligence of the defendant in the operation of one of its freight trains. By the petition it is charged that the plaintiff boarded defendant's local freight train No. 122 at Pleasant Hill, Mo., to go to the town of Kingsville, a few miles to the east; that he had theretofore been accustomed and was permitted by defendant's conductors, agents, servants, and employés to board cars and to be carried thereon from one station to another, and assist them in handling freights and switching cars; then with reference to this particular occasion, and the alleged negligence of the defendant, the petition says:

"That on the 22d day of September, 1902, at the said town of Pleasant Hill, plaintiff boarded defendant's local freight train called `Freight Train No. 122,' with the knowledge and permission of defendant, defendant's conductor, servants, agents, and employés operating the same, as plaintiff had been accustomed to do, as before stated, for the purpose of being carried to the said town of Kingsville, a station on defendant's said line of railway, and assisting in the operation of said train as aforesaid. That after boarding said train as aforesaid, plaintiff was carried thereon to the said town of Strasburg, a station on defendant's line of railway, between the said towns of Pleasant Hill and Kingsville, where said train was stopped and engaged in switching, which became necessary in its operation. That defendant and the said conductor ordered plaintiff to assist in, and ordered one of the brakemen on said train to take plaintiff and do, said switching and that plaintiff thereupon, in obedience to said order and under the direction of said brakeman, boarded one of defendant's freight cars on one of its said tracks and assisted in said switching, and was in a place of peril. That while plaintiff was so engaged on said car, and was in said place of peril, defendant and defendant's said conductor, agents, servants, and employés operating said train, knowing that plaintiff was on said car and in a place of peril, and after they could have known it by the exercise of ordinary care, negligently and unskillfully mismanaged the said engine, cars, and train, and carelessly and negligently, and with great and unusual and unnecessary force and violence, ran said engine and freight cars attached thereto against the said car on which said plaintiff was, by reason of which plaintiff was thrown from said car to the ground, his right leg broken, and his whole body wounded, bruised, and permanently injured, so that he has been rendered unable to labor, and has suffered and will continue to suffer during his life great bodily pain and mental anguish, and was compelled to and did expend and obligate himself to pay the sum of five hundred dollars for medicine and medical attendance."

That answer was, first, a general denial, which was followed by a special plea of contributory negligence couched in this language: "Said defendant, for further defense, states that, if said Errett Hall was injured as charged in the petition, it was by reason of his own wanton, willful, and reckless conduct in unnecessarily, wantonly, recklessly, and willfully climbing upon defendant's train and cars while the same were in motion, without any authority so to do, and while he was a trespasser in so doing. That the injury, if any, to said Hall was occasioned solely by the negligence of his own acts aforesaid, contributing directly to his own injury aforesaid, without any fault on the part of this defendant."

Reply, a general denial. Verdict and judgment for plaintiff in the sum of $6,000, from which, after the necessary but futile motions for new trial and in arrest of judgment had been passed upon, the defendant brings the case here by appeal.

The accident occurred September 22, 1902, at the town of Strasburg, as stated in the petition. At this town the defendant has three tracks, i. e., the main track and a north and south switch track. The main track runs to the south of the depot, the south switch track is south of the main track, and the north switch track north of the main track and also north of the depot. In other words, the depot stands between the north switch track and the main track. The east end of the north switch track is further east than that of the south switch track, and both some distance east of the depot. Actual measurements are given by one witness, as follows: The south switch leaves the main track 93 feet west of the point where the north switch track leaves it; at the widest point the south switch track is 9 feet from the main track, but the north switch track is further because it spreads out to go around the depot; the place of the accident was 15 feet west of the east point of the south switch; from the point of the accident to the first street crossing west was 16 rails or 48 feet; from the east point of the south switch to the window in the depot was 900 feet. These measurements are of but little value, save and except as they go to affect the credibility of the witnesses. There are three street crossings spoken of in the evidence, two to the east of the depot and one to the west. The first to the east runs just east of the depot.

From the evidence it appears that the plaintiff, rather an unruly orphan boy, being raised by his grandparents, had for some years been in the habit of jumping on defendant's freight trains, and in some instances riding from one station to another. He had been frequently notified by the station agent and by his grandfather of the danger of such conduct. He, himself, admits much of this conduct upon his part, and also some of the notices aforesaid. The station agent claims to have not only warned his grandfather, but the city marshal as well. He also claims to have driven plaintiff from the depot on several occasions, and...

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